Mr.J.A.Kotecha, learned advocate, states that he may be relieved as an advocate in the present petition as Shri Ramanlal Girdharlal Radhanpura, who is present in the court, is to appear as party-in-person.
Petitioner, Shri Ramanlal Girdharlal Radhanpura ('the party-in-person' for short) has tendered submissions in the form of letter dated 16.02.2012 addressed to the Hon'ble the Chief Justice, along with copy of General Standing Order No.1 dated 01.07.2009 (for short 'the GSO'), issued by Gujarat Urja Vikas Nigam Limited, the respondent herein, as well as Resolution dated 13.04.2009 of the State of Gujarat whereby 6th Pay Commission benefits were given to the pensioners as well as family pension w.e.f. 01.01.2006. The party-in-person has also tendered a copy of resolution dated 29.06.2009 of the respondent-Company with consent of Mr.Dipak R. Dave, learned counsel for respondent Nos.2 and 3. The said compilation along with the documents are permitted to be placed on record.
Heard the petitioner - party-in-person, Ms.Megha Chitaliya, learned Assistant Government Pleader for respondent No.1 and Mr.Dipak R. Dave, learned advocate for respondent Nos.2 and 3.
The petitioner, by way of this petition, has, inter alia, prayed for the following reliefs:
"A) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order and/or direction directing the Respondents No.2 herein to pay the difference of amount of Gratuity to the petitioner considering the provisions issued by the Government of Gujarat vide Government Resolution dated 13/04/2009.
B) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction to set aside the circular dated 05/06/2010 (ANNEXURE 'F COLLY') followed by the letter dated 01/09/2010 (ANNEXURE 'D') as the same is not only illegal and improper but unjust and violative of Articles 14 and 16 of the Constitution of India.
C) Pending hearing and final disposal of the present petition, Your Lordship may be pleased to grant the interim relief directing the respondents herein to pay amount of difference towards the gratuity as per the government resolution dated 13/04/2009 to the petitioner.
E) Any other and further reliefs as this Hon'ble Court may deem fit and proper in the circumstances of the case."
The facts which emerge from the record of the petition can be summarized as under:
That the petitioner was appointed as Junior Engineer by respondent No.2 on 05.02.1974 and the petitioner retired on his attaining age of superannuation on 29.11.2008. That vide Resolution dated 13.04.2009 the State Government has revised the provisions of regulating pension, gratuity and provident fund whereby the recommendation for 6th Pay Commission has been accorded to the employees of the government as well as the pensioners and even the gratuity limit is extended to Rs.10,00,000/- That the petitioner filed an application under the provisions of the Right to Information Act, 2005 on 17.08.2010 asking respondent No.2 to pay the amount of difference of gratuity as per Government Resolution dated 13.04.2009. That in response to the said application, respondent No.2 vide letter dated 01.09.2010 intimated the petitioner that as per Circular No.1254 dated 05.06.2010 respondent No.3-Company has raised the ceiling limit of gratuity from Rs.3,50,000/- to Rs.10,00,000/- and the said circular is not applicable to the cases of retirement / resignation before the date of 24.05.2010 and hence, the petitioner will not be eligible for enhanced ceiling. That on the basis of the fact that the amendment was introduced with effect from 24.05.2010 the respondents are denying the benefit of resolution of the State Government dated 13.04.2009. Being aggrieved by such decision the present petition is filed.
It is averred by the party-in-person that such a decision of the respondents, more particularly respondent No.2 is contrary, illegal and without authority of law. It is also averred that such an action of respondent No.2 is contrary to Government Resolution dated 13.04.2009. It is also averred that respondent No.2 is a 'State', as per Article 14 (it should be Article 12) of the Constitution of India and hence, the petitioner is a Government employee and, therefore, the provisions of Government Resolution dated 13.04.2009 would be applicable in the case of the petitioner also. It is also urged that even considering the provisions of Article 309 of the Constitution of India, Government Resolution dated 13.04.2009 would be applicable to the petitioner as the petitioner has served the State and in that view of the matter the Government Resolution would be applicable to the case of the petitioner. It is therefore urged that the action of respondent No.2 is arbitrary, illegal and contrary to the proposition of law and, therefore, it is prayed that the impugned circular as well as communication whereby the petitioner is denied the benefit of higher benefit of gratuity is not only illegal and improper but unjust and violative of Articles 14 and 16 of the Constitution of India and, therefore, the same may be set aside.
The party-in-person has also drawn attention of this Court to Clause 28 of the GSO and has submitted that as per the said provisions also the stand taken by the respondent is nothing but in violation of circular of the Board (sic. respondent No.3-Company) itself. It was further submitted that in spite of the circular of the Government dated 13.04.2009 the respondent authority has taken a contrary view even though copy of the circular dated 13.04.2009 is available with respondent Nos.2 and 3. It was also submitted that the circular is issued without any authority. No further contentions are raised by the party-in-person.
Per contra, Mr.Dave, learned advocate appearing for respondent Nos.2 and 3, submitted that respondent Nos.2 and 3 are autonomous bodies incorporated under the provisions of the Companies Act. It was further submitted that in fact the circular impugned in the present petition dated 05.06.2010 (Annexure-F) is strictly in consonance with Clause-28 of the GSO. It was submitted that as provided under the said Clause-28 as the Payment of Gratuity Act, 1972 was amendment w.e.f. 24.05.2010, the effect of the same is given from the date on which the said amendment came into force. It was therefore submitted that respondent Nos.2 and 3 have implemented the same in consonance with the provisions of Clause 28 of the GSO in its true letters and spirit. It was further submitted that the resolution of the State Government, more particularly resolution referred to by the party-in-person dated 13.04.2009 would not ipso facto strictly apply to respondent Nos.2 and 3. It was submitted that respondent No.2, being a public sector company, the terms and conditions of respondent No.2 are applicable to the petitioner and the resolution dated 13.04.2009 passed by the State of Gujarat would not applicable to the case of the petitioner and, therefore, it was submitted that the petitioner is not entitled to get difference of gratuity. It was also submitted that respondent Nos.2 and 3 are having their independent service rules and regulations.
Ms.Chitaliya, learned Assistant Government Pleader appearing for respondent No.1, has adopted the argument made by Mr.Dipak Dave, learned advocate appearing for respondent Nos.2 and 3.
It was submitted that the GSO is the essence of the settlement arrived at between the company and the Union as contemplated under Section 2(p) of the Industrial Disputes Act, 1947 and hence, the provisions of the GSO would ipso facto apply to the petitioner.
On query raised by the court, Mr.Dave submitted that the petitioner has been given all benefits as provided under Clause-23 of the GSO.
Considering the rival submissions made by all parties and on considering the averments made in the petition as well as in the affidavit-in-reply filed by respondent No.2, it is clear that respondent Nos.2 and 3 are autonomous bodies. Respondents have placed reliance upon the decision of this Court in the case of Shitalbhai H. Gusai Vs. Gujarat Urja Vikas Nigam Ltd. in Special Civil Application No.214 of 2011 rendered on 01.03.2011 wherein this Court has examined the identical issue. Relevant observations thereof are as under:
"4. It is not in dispute, and the petitioner also admits, that the circular dated 5.6.2010 which is impugned in the present petition is based on and is inconsonance with the amendment effected in Payment of Gratuity Act, 1972 and the amendment in the Act has been fully and diligently given effect to, by the respondent.
4.1 The respondent has, undisputedly brought its rules in line with the amendment in the Act.
4.2 The cap on the maximum payable amount under the Act is raised from 3.5 lacs to 10 lacs with effect from 24.5.2010.
4.3 Accordingly, the respondent has also made necessary amendment and effected the revision with effect from May 2010 by virtue of impugned circular.
4.4 Thus, the respondent has brought the rules in consonance with the provision under the Act. There is nothing on record to show that the benefit being granted by the State Government to its own employees automatically become applicable to the employees of respondent as well.
5. The respondent is an autonomous body.
6. The respondent has its own Rules and Regulations and it decides, depending on its own paying capacity and by keeping in focus other applicable and exclusive service conditions applicable to its employees, as to from which date the benefit should be extended to its employees and not on the basis of the decision of the State Government.
7. In absence of any provision bringing the respondent under compulsion to automatically apply all decisions of State Government to respondent's employees, neither such demand can be insisted nor can it be granted. Under the circumstances, prima facie, the grievance of the petitioner is not justified."
Considering the contentions raised by the party-in-person it is crystal clear that on the contrary Clause-28 of the GSO relied upon by both the sides clearly stipulates that the amendment in the parent Act i.e. the Payment of Gratuity Act, 1972 shall be applicable to the employees of respondent Nos.2 and 3 as per the provisions of the parent Act i.e. the Payment of Gratuity Act, 1972 from time to time. It is worthwhile to note that under Section 4(3) of the Payment of Gratuity Act, 1972 the maximum limit of payment of gratuity is provided for. Originally Section 4(3) of the Act provided limit of one lakh rupee, which was substituted by Act of 11 of 1998 whereby one lakh rupee was substituted to Rs.3,50,000/-, thereby prescribed maximum limit of gratuity payable to an employee to Rs.3,50,000/- w.e.f. 24.09.1997. Thereafter by Act of 15 of 2010 the said limit was enhanced from Rs.3,50,000/- to Rs.10,00,000/- w.e.f. 24.05.2010 and, therefore, in pursuance to the provisions of Clause-28 of the GSO, the amendment in the Payment of Gratuity Act as aforesaid would be applicable to employees of the respondent-Company w.e.f. 24.05.2010 and, therefore, the circular dated 05.06.2010 is legal and proper and in accordance with the provisions of Clause 28 of the GSO. The second contention, which is raised by the party-in-person that the provisions of Government Resolution dated 13.04.2009 would ipso facto apply to the case of the petitioner also deserves to be negatived in view of what is held by this Court in case of Shitalbhai (supra).
In view of the above, the petition fails and the same is rejected. NOTICE discharged. No costs.
Sd/-
[R.M.CHHAYA, J ] *** Bhavesh*